Yes, Amazon and eBay can ban sales of Confederate merchandise. Is that good or bad?

Publication Type: 
Other Writing
Publication Date: 
June 24, 2015

The news that eBay and Amazon are moving to block sales of Confederate-related merchandise is causing concern among commentators like the New York Times’ Josh Barro. Barro and others have no time for Confederacy nostalgia, but worry that having “Amazon and eBay exercising a lot of discretion over third-party postings may not be a great road to go down.”

But Amazon and eBay have banned sales of certain political material for many years. Amazon bans sellers from selling products that “promote or glorify hatred, violence, racial, sexual or religious intolerance or promote organizations with such views.”  eBay’s ban has identical wording. Neither organization has been fully successful in enforcing these bans, but they stand.

Why do both Amazon and eBay ban certain kinds of content?

France, Germany and Nazi paraphernalia

One of the most important, though little-known, moments in Internet regulation was the fight between Yahoo and France over Nazi paraphernalia. (In this account I am relying on Jack Goldsmith and Timothy Wu’s excellent summary of the case). France, like Germany and some other European states, bans people from buying or selling Nazi-related materials. These countries do not have an equivalent of the U.S.’s First Amendment and have obvious historical reasons for being sensitive about Nazis and far-right sentiments. In 2000, two French anti-racist organizations sued Yahoo, which was then trying to create an Internet auction business, in French courts for allowing the buying and selling of Nazi-related materials. Yahoo  fought back on free speech grounds and on the grounds that it was a U.S.-based company, but lost the case when it became clear that it could use “geolocation” techniques to filter its auction results so that French people — and only French people — would be blocked from buying and selling Nazi-related material.

And yet Yahoo  decided not to filter Nazi-related auctions for French people only. Instead, it created a general ban on auctions of “items that are associated with groups which promote or glorify hatred and violence,” claiming improbably that it was doing this not because of a French court ruling, but because “society as a whole had rejected these groups.” Other major Internet companies such as eBay and Yahoo, which allow auctions or third-party companies to sell items via their Web sites, have adopted similar policies, for similar reasons; because they don’t want to get in trouble with French or German legal authorities, and because of informal pressure.

These rules are now being reinterpreted to ban Confederate memorabilia.

Read the full piece at The Washington Post